To Seal and Destroy

When Elise Gerhart chose to attend local businessman Rob Arkley's 2013 forum on homelessness, she knew that she might go to jail. Gerhart, then a Humboldt State University student, had been arrested by the Eureka Police Department during protests before. The arrest on Sept. 18, 2013 was no different — she was handcuffed, booked and released. As with previous arrests, no charges were filed. But despite never having been found guilty of a crime, the choice of her arresting officer to use a particular booking code has cost her two jobs, resulted in her being denied entry to a foreign country and tangled her in a protracted legal battle to prove herself "factually innocent."

The police reports, written by then-EPD Chief Murl Harpham and Sgt. Kay Howden, alternately align with and veer away from Gerhart's account. Gerhart went to the Wharfinger Building with the intention of attending the meeting and speaking during the public comment period.

"I wanted to give my opinion about how cutting social services was a bad thing," she says. Arkley's announcement of the meeting called for consensus on programs and policies to cut in order to reduce the number of homeless in the region. Gerhart was barred from entering the building, which was at capacity, by Harpham, whose report says that she attempted to enter several times.

"She was becoming very aggressive," Harpham wrote, adding that he recognized Gerhart from previous protests. Gerhart, he wrote, was "inciting a couple of other people who were also becoming verbally aggressive." Harpham called for backup so he could arrest her, but she "pulled away from [his] grip" before he could do so.

Gerhart denies this version of events, saying the police report was full of inaccuracies. She also feels the denial of entry was arbitrary, based on Harpham's personal bias. She saw a "woman in a business suit" admitted by Harpham. Howden's report seems to confirm EPD was on guard for issues with protesters. Howden was watch commander that night, and wrote in her report that she had been apprised there would be "some of our more provocative protesters" at the meeting.

"My first impression was that there were two distinct groups of people milling around the front area of the Wharfinger," her report reads. "The first consisted of people dressed in casual/business attire, ... people I recognized as local residents and business men/women. The second group consisted of fairly 'scruffy' looking people, scattered about the lawn area."

According to Howden, the "business men/women" were talking quietly, and the "scruffy" people were not. Accounts of the event, which drew more than 300 people to the Wharfinger Building, say that protestors outside were banging drums and blowing horns. Gerhart was among them. Harpham called on officers to arrest a woman, Stephanie Bartlett, who blew a horn "directly in [his] face." He also arrested Kim "Verbena" Starr and singled out Gerhart for arrest. (Howden's report describes carrying Gerhart with the aid of another officer in a fireman's hoist as Gerhart defiantly continued to "blow her party horn.") As Howden and another officer were handcuffing Gerhart, another protestor, Chad Kemp, allegedly threw a cup of water on Harpham's back.

"Someone in the crowd stated 'It's urine,'" reads Harpham's report. "But I could tell that it wasn't as some got in my eye and there was no stinging or odor."

It was this last action that led to Gerhart's arrest on suspicion of battering a police officer. According to all accounts, Gerhart was nowhere near the scene of the splash, but the recommended charge — California Penal Code section 243 (b) — appeared on her arrest report, along with charges of inciting a riot and resisting arrest. Gerhart describes herself as "completely caught off guard" when, after an hour in custody, she was presented with her arrest report and released. A former intern at a civil liberties organization, she assumed her actions were covered under the First Amendment, and was mystified as to why she was being accused of assault. But the district attorney never brought charges, and a fellow arrestee's case was dismissed for lack of evidence. Gerhart moved on, focusing on her education. She assumed that the arrest, like previous incidents, would be without repercussion. At the end of the 2013-2014 school year she took a trip up the coast to Canada. And that's when she began to understand the full scope of her situation.

"The border police informed me that I wasn't going to be able to enter the country. I tried to tell them I was never charged, never convicted. I was treated like a criminal by Canadian and U.S. Border Patrol," she said in a phone interview. Gerhart decided to clear her record of arrest. She was surprised to find out that, by law, she had only two years from the date of her arrest to do so, and surprised again when the Eureka Police Department rejected her petition on the very same day it was received — Dec. 2, 2014. When EPD returned the form, the responding officer, Sgt. William Nova, had crossed out the recommended charges of assault and inciting a riot and replaced them with a lesser charge — disturbing a public meeting.

Current EPD Chief Andy Mills said that Nova rejected the petition "because it did not meet the legal definition to seal or destroy the record. The person must be 'factually innocent' to seek relief."

Nova's handwritten amendment did nothing to change Gerhart's record with the Department of Justice, the same entity that prevented her from entering Canada and, over the past year, has cost her two jobs when LiveScans of her fingerprints turned up the ominous words "battery on a peace officer." (She is seeking work as a caregiver.) So Gerhart, with the help of her lawyer, Tracy Rain, brought the case to court.

Rain says the case was "quirky at every stage." After EPD turned down the petition, the next step was to ask the court for a statement of factual innocence. Gerhart took this step herself. The petition was lodged on Feb. 23. The goal was to finish sealing the record before her graduation from HSU. The case was delayed three times. Gerhart and Rain describe a court system mystified by their request.

"Every judge we appeared before asked what we were trying to accomplish," said Rain. Originally scheduled for trial on March 25, the DA's office filed an opposition, which brought a continuance. It was rescheduled for April 27, then May 4. On May 15 it finally came before Judge Marilyn Miles. But when Deputy City Attorney Candice Myers appeared in court, Miles turned her away, saying that it was the district attorney's job to prosecute the case.

Meanwhile, Gerhart was preparing to graduate and move back to the East Coast to attend to some family issues. Between May 19 and Aug. 4, Rain's office filed "an extensive trial brief." Their argument hinged on disproving the amended charges of disrupting a public meeting. Using audio clips and accounts from the public forum, Rain sought to demonstrate that Gerhart's actions fell into a loophole exempting such disruption at "political gatherings." The Arkley forum drew public figures and politicians, said Rain, and was clearly a political gathering.

While the DA's office did not withdraw its opposition, it also did not resubmit. In early October, Gerhart flew back from Pennsylvania to attend a pretrial hearing. Upon finding that the DA had not filed an opposition, Miles dismissed the case, ordering the arrest record sealed and destroyed, declaring Gerhart "factually innocent."

Rain represented Gerhart pro bono, but a paying client would have run up an estimated $3,000 in legal fees. None of the other arrestees have had their arrest records expunged, and the time in which they could seek to do so has lapsed. Some states, including California, prohibit employers from asking about arrests that have not led to conviction. This does not keep federal entities or employers in other states from accessing this information, although according to a report in the Wall Street Journal, arrest information forwarded to the Federal Bureau of Investigation often is not updated when a case is dismissed, and only about half of all such files at the FBI are up to date. There's also nothing to keep employers from turning up accounts of an arrest through a simple web search.

David Levine, a professor at University of California Hastings School of Law, says Gerhart's case is "odd" and complicated as it puts the burden of proof on the arrestee.

"The problem is, how do you prove the negative?" he explains. "The original agency could say that they made a mistake."